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Case Brief · caselaw.co.ke
Court of AppealPartially AllowedMisc. Civil Application No. 69 of 2020· [2021] KECA 911 (KLR)

Obadia Shiboche Isalia & 1 other v James Atema

Court of Appeal of Kenya
5 March 2021
2,451 words in judgment
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The bottom line

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Kenya's Court of Appeal gave the applicants 30 days to file their appeal record, ruling that delay caused by the court registry should not doom an appeal.

What this practically means

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Executive summary

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This is a single-judge (in chambers) ruling of the Court of Appeal at Kisumu on a notice of motion dated 17th March 2020 by which the applicants sought extension of time to file and serve a record of appeal out of time, challenging the judgment of the High Court (N. A. Matheka, J.) of 23rd October 2018 in Kakamega ELC No. 60 of 2013, in which they were found to have acquired title through fraud and three acres were directed to be registered in the respondent's favour. The applicants filed a notice of appeal (itself lodged three days late) and timeously applied for certified proceedings, but the record was not supplied until 24th February 2020, evidenced by a certificate of delay and follow-up correspondence. The respondent opposed, alleging the applicants' certificate of delay was fake and producing a rival certificate. The court struck out reliance on sections 1A, 1B, 3 and 3A of the Civil Procedure Act, holding that only Rule 4 of the Court of Appeal Rules applied, and restated the settled Rule 4 principles, including those from the Supreme Court in Nicholas Kiptoo Arap Korir Salat. Holding the post-capacitation delay of under a month not inordinate, the intended appeal arguable, and no prejudice shown, the court granted the extension: the applicants were given thirty days to file and serve the record of appeal, with costs of the application to abide the outcome of the intended appeal. No decision of the High Court was disturbed at this interlocutory stage.

Key legal issues

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01

Extension of time to file record of appeal under Rule 4

Holding

Extension granted: the applicants timeously applied for typed proceedings, obtained a certificate of delay on 24th February 2020, and filed the application within less than a month of capacitation; the intended appeal is arguable and no prejudice to the respondent was shown.

Reasoning

The court applied the settled Rule 4 factors: length of delay, reason for delay, arguability, and prejudice. Although the notice of appeal was lodged three days late and the record was filed well outside the sixty days in Rule 82(1), the delay was attributable to the registry's failure to supply typed proceedings, evidenced by correspondence and a certificate of delay. The applicants filed within a month of being capacitated. A challenge to a judgment finding title was procured by fraud is arguable, and the respondent pointed to no prejudice.

p. 3
02

Effect of conflicting certificates of delay

Holding

Where the parties produce rival certificates of delay and neither seeks verification by the Deputy Registrar, the court cannot bar the applicant from relying on their own certificate.

Reasoning

The respondent alleged the applicants' certificate of delay dated 24th February 2020 was fake and produced a rival one. The court held that verifying which certificate was authentic was beyond the scope of the ruling and neither party had initiated verification with the Deputy Registrar; accordingly the applicants could rely on their certificate as the basis for the application.

p. 3
03

Proviso to Rule 82(1) and the certificate of delay

Holding

An applicant who timeously applied for proceedings is entitled to the benefit of the proviso to Rule 82(1), with the sixty-day period running from the date of the certificate of delay.

Reasoning

The applicants lodged a notice of appeal and a letter bespeaking proceedings timeously, with no assertion that the respondent was not served with the bespeaking letter. The proviso to Rule 82(1) therefore applied, subject to obtaining a certificate of delay showing the period taken to prepare the record fell outside the sixty days.

p. 3

Legal principles established

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  • The Court's power under Rule 4 is discretionary and unfettered, guided by the length of and reason for delay, arguability of the appeal, prejudice to the respondent, and related factors
  • A plausible and satisfactory explanation for delay is the key that unlocks the court's discretionary power under Rule 4
  • Failure to attach a draft memorandum of appeal is not fatal to a Rule 4 application so long as arguability is demonstrated through other processes relied upon
  • A delay of less than one month since capacitation (receipt of certified proceedings and certificate of delay) is not inordinate

Court orders

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  1. 1.Applicants have thirty (30) days from the date of the ruling to file and serve a record of appeal
  2. 2.Costs of the application to abide the outcome of the intended appeal
On appeal from
High Court of Kenya
Kakamega ELC No. 60 of 2013
Jurisdiction invoked
Rule 4 of the Court of Appeal Rules under the Appellate Jurisdiction Act, Cap 9 Laws of Kenya

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Obadia Shiboche Isalia & 1 other v James Atema", Case Analysis (2021). Misc. Civil Application No. 69 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/911/eng@2021-03-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.